An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1244

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

v. Columbus County

Nos. 11 CRS 52691-92, 52694-95

ELIJAH JONES

Appeal by Defendant from judgments entered 6 June 2013 by 

Judge Douglas B. Sasser in Columbus County Superior Court.

Heard in the Court of Appeals 5 March 2014.

Attorney General Roy Cooper, by Special Deputy Attorney 

General L. Michael Dodd, for the State.

Parish & Cooke, by James R. Parish, for Defendant.

STEPHENS, Judge.

On 9 September 2011, Defendant Elijah Jones was indicted 

for the first-degree murder of his wife, Joan Everette, the 

felonious assault of Bobby Ray Shipman, and two counts of 

discharging a weapon into occupied vehicles. The evidence at 

Defendant’s trial in June 2013 tended to show the following:
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Defendant and Everette had a volatile relationship as 

evidenced by, inter alia, a domestic violence protective order 

(“DVPO”) against Defendant that Everette obtained in October 

2009. By the date of the murder and assault in August 2011, 

Everette had moved out of the marital home and was living at her 

mother’s home. Everette and Shipman had been dating for several 

months, despite the fact that each was still married to other 

people. Defendant was aware of and unhappy about the 

relationship between Everette and Shipman. 

On 19 August 2011, Everette’s mother was in the hospital, 

and Shipman spent the night with Everette in her mother’s home. 

The next morning, Everette and Shipman drove to the hospital 

together in Everette’s car. Once in the parking lot, Shipman 

got into his own car and was preparing to drive away when 

Defendant’s car suddenly pulled up between his car and 

Everette’s. Defendant emerged from his car and pointed a 

handgun at Shipman. Shipman laid down on the front seat and 

pressed the gas pedal as multiple gunshots rang out. Shipman 

was struck by three bullets, but was able to drive to the 

hospital emergency room where he underwent surgery and 

ultimately survived his wounds. Everette was not so lucky. She 
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had been struck and killed by a single gunshot to the head while 

still sitting in her car.

Shortly after the shootings, Defendant turned himself in at 

the Columbus County Sheriff’s Department. In his statement to 

law enforcement officers, Defendant said that he had followed 

his wife’s car to the hospital and, when he saw Shipman emerge 

from the vehicle, Defendant “flipped” and started shooting. At 

trial, Defendant denied any domestic violence against Everette. 

He also testified that he had not fired at Everette and Shipman 

to harm them, but rather to scare them and out of fear that 

Shipman was going to shoot Defendant. 

The jury returned guilty verdicts on all four counts. The 

trial court sentenced Defendant to life in prison without the 

possibility of parole for Everette’s murder, a concurrent term 

of 73 to 97 months in prison for the assault on Shipman, and two 

consecutive terms of 25 to 39 months in prison for discharging 

his gun into the victims’ vehicles. Defendant gave notice of 

appeal in open court. 

Discussion

Defendant makes three arguments on appeal: that the trial 

court erred in (1) refusing to give his exact proposed jury 

instruction on transferred intent, (2) refusing to give his 
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proposed jury instruction on the absence of flight, and (3) 

admitting evidence of firearms seized from him as a result of 

the DVPO. We find no error.

I. Jury instruction on transferred intent

Defendant first argues that the trial court erred in 

refusing to give his proposed jury instruction on transferred 

intent. We disagree.

“Whether a jury instruction correctly explains the law is a 

question of law, reviewable by this Court de novo.” State v. 

Barron, 202 N.C. App. 686, 694, 690 S.E.2d 22, 29 (citation 

omitted), disc. review denied, 364 N.C. 327, 700 S.E.2d 926 

(2010). “However, an error in jury instructions is prejudicial 

and requires a new trial only if there is a reasonable 

possibility that, had the error in question not been committed, 

a different result would have been reached at the trial out of 

which the appeal arises.” State v. Castaneda, 196 N.C. App. 

109, 116, 674 S.E.2d 707, 712 (2009) (citation and internal 

quotation marks omitted).

“The prime purpose of a court’s charge to the jury is the 

clarification of issues, the elimination of extraneous matters, 
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and a declaration and an application of the law arising on the 

evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 

191 (1973) (citations omitted), cert. denied, 418 U.S. 905, 41 

L. Ed. 2d 1153 (1974). Thus, “[i]t is the duty of the trial 

court to instruct the jury on all substantial features of a case 

raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 

S.E.2d 546, 549 (1988) (citation omitted). However, “a trial 

court is not required to repeat verbatim a requested, specific 

instruction that is correct and supported by the evidence, but 

that it is sufficient if the court gives the instruction in

substantial conformity with the request.” State v. Brown, 335 

N.C. 477, 490, 439 S.E.2d 589, 597 (1994) (citations omitted). 

Under the doctrine of transferred intent,

it is an accepted principle of law that 

where one is engaged in an affray with 

another and unintentionally kills a 

bystander or a third person, his act shall 

be interpreted with reference to his intent 

and conduct towards his adversary. Criminal 

liability, if any, and the degree of 

homicide must be thereby determined. Such a 

person is guilty or innocent exactly as if

the fatal act had caused the death of his 

adversary. It has been aptly stated that 

“[t]he malice or intent follows the bullet.”

The doctrine of transferred intent does not 

require or permit one fact to be presumed 

based upon the finding of another fact. 

Instead, under the doctrine of transferred 

intent, it is immaterial whether the 
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defendant intended injury to the person 

actually harmed; if he in fact acted with 

the required or elemental intent toward 

someone, that intent suffices as the intent 

element of the crime charged as a matter of 

substantive law. 

State v. Locklear, 331 N.C. 239, 245, 415 S.E.2d 726, 730 (1992)

(citations, some internal quotation marks, and some brackets 

omitted). 

Here, Defendant proposed that the trial court give four 

paragraphs of instructions regarding transferred intent to the 

jury:

[1] If at the time Elijah Jones fired his 

revolver, he did so honestly believing in 

the need to protect himself from imminent 

death or serious harm, and if Elijah Jones 

fired his revolver to protect himself from a 

perceived threat from Bobby Shipman (and his 

belief was reasonable under the 

circumstances as they appeared to Elijah 

Jones at the moment of the perceived 

threat), and if a bullet fired by Elijah 

Jones hit and killed Joan Everett[e], then 

and in that event, Elijah Jones would be 

only as guilty as to Joan Everett[e] as he 

would have been had the bullet struck Bobby 

Shipman.

[2] That is, if Elijah Jones killed Joan 

Everett[e] unintentionally, but you find he 

intended to shoot Bobby Shipman and instead 

hit Joan Everett[e], Elijah Jones would only 

be as guilty or innocent as if the fatal act 

had caused the death of Bobby Shipman.

[3] Further, if Elijah Jones’ said use of 

deadly force against Bobby Shipman was 
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otherwise justified, but was executed so 

negligently as to endanger Joan Everett[e], 

nothing else appearing, then Elijah Jones 

would be guilty of involuntary manslaughter.

[4] That is, if the defendant, Elijah Jones,

intended to harm one person but instead 

harmed a different person, the legal effect 

would be the same as if the defendant had 

harmed the intended victim, and if a killing 

of the intended person would be with malice, 

then the killing of the different person 

would also be with malice. Finally, if the 

defendant’s intent was to act in selfdefense, and without malice, then that 

intent would also be transferred to the 

actual victim.

The court instructed the jury by reading paragraphs one and 

four, but not paragraphs two and three. 

As Defendant concedes in his brief, the first paragraph 

accurately states the law regarding transferred intent as 

applicable in this case. However, Defendant contends that 

paragraph two was “necessary as a short[,] concise, explanatory 

mandate” and as “a clarification of a complex concept[.]” 

Defendant cites no authority for the proposition that an 

accurate instruction on a legal concept must be followed by 

further clarification and explanation, and we know of none. 

Indeed, while the trial court did not “repeat verbatim 

[Defendant’s] requested, specific instruction[,]” by his own 

admission the court gave an “instruction in substantial 
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conformity with the request.” See Brown, 335 N.C. at 490, 439 

S.E.2d at 597. The trial court did not err in instructing the 

jury on the doctrine of transferred intent, and accordingly, 

Defendant’s argument is overruled.

II. Jury instruction on absence of flight

Defendant next argues that the trial court erred in denying 

his proposed jury instruction on the absence of flight. We 

disagree.

Defendant requested that the court give an instruction on 

the “logical converse” of the pattern jury instruction which 

permits a jury to consider a defendant’s flight as evidence 

suggesting consciousness of guilt, to wit, that absence of 

flight (or turning oneself in to the authorities, as occurred 

here) can be considered as showing the lack of any consciousness 

of guilt. Defendant acknowledges that “[o]ur Courts have held 

differently[,]” citing State v. Burr, 341 N.C. 263, 461 S.E.2d 

602 (1995), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526

(1996); State v. Wilcox, 132 N.C. 1120, 44 S.E. 625 (1903); and 

State v. Thomas, 34 N.C. App. 594, 239 S.E.2d 288 (1977), disc. 

review denied, 294 N.C. 445, 241 S.E.2d 846, cert. denied, 439 

U.S. 926, 58 L. Ed. 2d 318 (1978), but asserts that the 

“position of the court flies in the face of logic.” Defendant’s 
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argument on this issue flies in the face of precedent, the 

guiding principle of this Court. See, e.g., In re Appeal from 

Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) 

(“Where a panel of the Court of Appeals has decided the same 

issue, albeit in a different case, a subsequent panel of the 

same court is bound by that precedent, unless it has been 

overturned by a higher court.”). Defendant’s argument is 

overruled.

III. Admission of evidence of additional firearms

Finally, Defendant argues that the trial court erred in 

admitting evidence of firearms seized from him as a result of 

the DVPO. Specifically, Defendant contends that this evidence 

was not relevant and was thus inadmissible. Defendant has not 

preserved his right to appellate review of this issue.

As a result of the DVPO Everette obtained, four firearms 

were seized from Defendant,1 including the .44 Magnum revolver 

Defendant would later use to shoot Everette and Shipman. The 

other three firearms seized in 2009 were not involved in the 

 

1 The DVPO expired on 5 November 2010 and was not renewed. 

Thereafter, Defendant filed a motion for the return of the 

weapons he surrendered. By order entered 10 December 2010, the 

district court directed the sheriff’s department to return the 

seized weapons to Defendant. 
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attack. Citing Rule of Evidence 404(b), Defendant objected when 

the State sought to introduce a copy of the DVPO and related 

documents as State’s Exhibit 80. Exhibit 80 was some ten pages 

long with some pages printed on both sides. Included in the 

exhibit was a list of the firearms Defendant turned over to the 

Columbus County Sheriff’s Department in compliance with the 

order. The court admitted the domestic violence order and 

related testimony, but agreed to give a limiting instruction

pursuant to Rule 404(b). A deputy clerk of the superior court 

in Columbus County used the exhibit to illustrate her testimony 

and, inter alia, read the list of seized firearms to the jury. 

“In order to preserve a question for appellate review, a 

party must have presented the trial court with a timely request, 

objection or motion, stating the specific grounds for the ruling 

sought if the specific grounds are not apparent.” State v. 

Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also

N.C.R. App. P. 10(a)(1). Defendant did not object to Exhibit 80 

on the basis of relevance per Rules of Evidence 401 or 402, but 

rather under Rule 404(b). Where a defendant argues a different 

basis for exclusion of evidence on appeal than he brought 

forward at trial, his objection is not preserved for appellate 

review. See State v. Rayfield, __ N.C. App. __, __, 752 S.E.2d 
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745, 762 (2014); see also State v. Benson, 323 N.C. 318, 322, 

372 S.E.2d 517, 519 (1988) (“Defendant may not swap horses 

[concerning his argument] after trial in order to obtain a 

thoroughbred upon appeal.”) (citation omitted). “Because 

Defendant did not argue plain error in the alternative, he may 

not seek appellate review of this issue.” Rayfield, __ N.C. 

App. at __, 752 S.E.2d at 762.

NO ERROR.

Judges BRYANT and DILLON concur.

Report per Rule 30(e).